# C_2019148EN.01003701.xml

| 29.4.2019 | EN | Official Journal of the European Union | C 148/37 |
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29.4.2019

EN

Official Journal of the European Union

C 148/37

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Appeal brought on 25 February 2019 by Stena Line Scandinavia AB against the judgment of the General Court (Sixth Chamber) delivered on 13 December 2018 in Case T-631/15: Stena Line Scandinavia v Commission

(Case C-175/19 P)

(2019/C 148/34)

Language of the case: English

Parties

Appellant: Stena Line Scandinavia AB (represented by: L. Sandberg-Mørch, advokat, P. Alexiadis, Solicitor)

Other parties to the proceedings: European Commission, Kingdom of Denmark, Föreningen Svensk Sjöfart

Form of order sought

The appellant claims that the Court should:

| — | Set aside the Judgment of 13 December 2018 of the General Court in Case T-631/15 to the extent that it dismissed the appellant’s first and third pleas with regard to the measures granted to Femern Landanlæg; their second and third pleas as regards the claims that the Commission had erred in law or faced serious difficulties concerning the incentive effect of the aid, the counterfactual scenario that the Commission had relied upon for its assessment of the necessity of the aid and the conclusion that the aid granted to Femern A/S does not cause undue distortions of competition; |
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Set aside the Judgment of 13 December 2018 of the General Court in Case T-631/15 to the extent that it dismissed the appellant’s first and third pleas with regard to the measures granted to Femern Landanlæg; their second and third pleas as regards the claims that the Commission had erred in law or faced serious difficulties concerning the incentive effect of the aid, the counterfactual scenario that the Commission had relied upon for its assessment of the necessity of the aid and the conclusion that the aid granted to Femern A/S does not cause undue distortions of competition;

| — | Order the respondent to pay its own costs and the costs of the appellant. |
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Order the respondent to pay its own costs and the costs of the appellant.

Pleas in law and main arguments

The appellant raises six pleas in law against the contested judgment:

| — | First, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not experience serious difficulties in holding that the State guarantees and State loans granted to A/S Femern Landanlæg for the Danish rail Hinterland Connections was not liable to distort competition as the relevant market is not open to competition.
  The appellant argued that this erroneous conclusion of the General Court is based on four errors in law, corresponding to four sub pleas:






  a) | The General Court erred in law by holding that the State guarantees and State loans granted to A/S Femern Landanlæg are not liable to affect competition although the Fixed Link (operated by Femern A/S) and the Danish rail Hinterland Connections (operated by Femern Landanlæg) together constitute one integrated project and the State guarantees and State loans granted to Femern A/S have already been found to be liable to distort competition. |
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First, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not experience serious difficulties in holding that the State guarantees and State loans granted to A/S Femern Landanlæg for the Danish rail Hinterland Connections was not liable to distort competition as the relevant market is not open to competition.

The appellant argued that this erroneous conclusion of the General Court is based on four errors in law, corresponding to four sub pleas:

a)

The General Court erred in law by holding that the State guarantees and State loans granted to A/S Femern Landanlæg are not liable to affect competition although the Fixed Link (operated by Femern A/S) and the Danish rail Hinterland Connections (operated by Femern Landanlæg) together constitute one integrated project and the State guarantees and State loans granted to Femern A/S have already been found to be liable to distort competition.

| b) | The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de lege’ open for competition. |
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b)

The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de lege’ open for competition.

| c) | The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de facto’ open for competition. |
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c)

The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de facto’ open for competition.

| d) | The markets for the construction and maintenance of the railway infrastructure, which are open to competition, are separate from the market for the management and operation, in the strict sense, of the railway infrastructure; |
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d)

The markets for the construction and maintenance of the railway infrastructure, which are open to competition, are separate from the market for the management and operation, in the strict sense, of the railway infrastructure;

| — | Second, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties in determining that the State guarantees and State loans granted to A/S Femern Landanlæg for financing the Danish rail Hinterland Connections was not liable to affect trade between Member States. |
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Second, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties in determining that the State guarantees and State loans granted to A/S Femern Landanlæg for financing the Danish rail Hinterland Connections was not liable to affect trade between Member States.

| — | Third, in violation of Article 107(3)(b) and 108(2) TFEU, the General Court erred by concluding that the costs of the Hinterland Connections may be included in the calculation of the maximum permissible aid intensity for the Fixed Link (in the context of the compatibility analysis) although, according to the General Court, the funding granted to the Hinterland Connections does not constitute State aid. |
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Third, in violation of Article 107(3)(b) and 108(2) TFEU, the General Court erred by concluding that the costs of the Hinterland Connections may be included in the calculation of the maximum permissible aid intensity for the Fixed Link (in the context of the compatibility analysis) although, according to the General Court, the funding granted to the Hinterland Connections does not constitute State aid.

| — | Fourth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when deciding that the aid to Femern A/S had an incentive effect; |
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Fourth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when deciding that the aid to Femern A/S had an incentive effect;

| — | Fifth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when it decided that the Danish authorities had submitted an appropriate counterfactual scenario for its assessment concerning the necessity of the aid. |
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Fifth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when it decided that the Danish authorities had submitted an appropriate counterfactual scenario for its assessment concerning the necessity of the aid.

| — | Sixth, the General Court erred in law by holding that the aid granted to Femern A/S does not cause undue distortions of competition |
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Sixth, the General Court erred in law by holding that the aid granted to Femern A/S does not cause undue distortions of competition

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